Theory Of Perfecting Statutory Damages System Of China’s Patent Infringement

In January 2019,the Draft Amendment to the Patent Law was deliberated and published by the NPC Standing Committee to solicit public opinion,and the deliberation will continue this year.From the content of the Amendment,the amendment of the statutory damages lies in the change of the limitation of the amount of indemnity,which is specifically reflected in the adjustment from 10,000 to 1,000,000 to 100,000 to 5,000,000,and in the introduction of punitive damages in the system of determining the amount of indemnity.However,in the actual judicial practice process,many difficulties of the application of the statutory damages exists: some defects deviating from the principle of filling exists in certain degree at the beginning of its establishment;at the same time the judge also has significant discretionary power;in the process of the application of the statutory damages,the statutory damages have been abused though as the last calculation method,and the amount of indemnity is also generally far less than the plaintiff’s claim;the judge’s reasoning about the determining of statutory damages in his judgment is also quite obscure,and so does whether the statutory damages are punitive.The Draft Amendment cannot perfectly solute the problem that how to better determine the amount of the damages for patent infringement and regulate the application of statutory damages.Therefore,it is necessary to comb and analyze the problem of statutory damages of China’s patent infringement.This paper analyzes the dilemma of the application of statutory damages of patent infringement and the background of its generation through jurisprudence and Economics of Law,to find that statutory damages is a kind of justice-efficiency balanced and appropriate tilt to the efficiency system,following the compensatory principle of common tort requirement while does not have penalty function.At the same time,this paper used the system of two most representative countries in the law system,the United States and Germany,about determining the patent infringement damages for reference.In order to perfect China’s system of patent infringement damages,this paper suggests: cancelling the strict application order of the four calculation methods and giving the oblige the right to choose by oneself,and explicitly determining that punitive damages can be calculated by making the amount of statutory damages as the base figure;abolishing the lower limit of statutory damages;increasing the way to prove the royalty;and possibly establishing the "separating tort determination and damages" system of patent infringement,which gives the parties more choices to solve disputes by themselves.